Correct on the date of publication - 4 November 2024
Question:
PACE permits the re-arrest of a person, who has been released on bail, for the offence which he was initially arrested, if 'new' evidence has come to light since his release, (section 47(2) PACE). Section 41(9) of the Act contains a similar provision and permits the re-arrest of persons released from police detention without charge with or without bail at the expiry of twenty four hours after the relevant time if such grounds exists.
What might amount to 'new evidence'?
Answer:
The term 'evidence' should be construed as meaning all the legal means, exclusive of mere argument, which tend to prove or disprove any alleged matter of fact, the truth of which is submitted to a judicial process (e.g. Crown Court).
It is submitted that for the purposes of sections 47(2) and 41(9) of PACE the strict legal meaning of the term 'evidence' applies. Implicit in the two provisions is that the new evidence must be admissible within legal rules governing the subject. For evidence to be admissible it must be relevant and, in particular, relate to -
- the facts in issue of the case; or
- facts relevant to the facts in issue; or
- be otherwise admissible in evidence.
Say, fingerprints were found on a window at the point of entry of a burglary. The fact that marks of some description were found at the point of entry is in itself irrelevant and inconsequential. The fact that the scene of crimes officer lifted those fingerprints is, in itself, only admissible at court once it is known that the prints are those of the individual (who is eventually a defendant before the court). The fact that the marks were found, were compared by manual means, or by automatic fingerprint recognition techniques, is not evidence at that point in time.
Once a fingerprint expert identifies the marks found at the point of entry of the burglary as being those of the eventual defendant, then it is potentially admissible evidence within the strict legal meaning of the term. It proves that the individual has been in close proximity to the point where the entry was effected. It might prove, or help to prove (or negate) other matters depending on the circumstances.
It follows that if, at the time eventual defendant was initially in custody, it was not known that the marks found at the scene of the burglary were his (even though it might be suspected they were his), when such information is established and given to the investigator, assuming it is after the eventual suspect's release, the information is new evidence for the purposes of this legislation.
It is new evidence because the investigator is now in possession of information which is presentable to a court – i.e., is admissible – which s/he was not in possession of during the period of the eventual suspect's initial detention.
The results of forensic examination of DNA analysis, which links the suspect with the crime, and which were not known at the time of the eventual suspect's detention, could similarly amount to new evidence.
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